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George Bisharat: International court should take up Israeli-Palestinian conflict

By George Bisharat

Special to the Mercury News

Posted:
07/18/2014 01:38:10 PM PDT

Updated:
07/18/2014 01:38:12 PM PDT

Israel, in the latest of its now almost biennial killing sprees in the Gaza Strip, again appears to be committing war crimes. The toll as of Friday exceeded 270 Palestinian deaths, more than 2,000 wounded, and untold destruction of property.

The majority of victims, as usual, are civilians -- 77 percent according to the United Nations, including more than 50 children. Thus far, one Israeli has been killed by Hamas mortar fire near the Gaza border and an Israeli soldier was shot in Gazan territory.

All nations, including Israel, have the right defend their citizens. Yet self-defense cannot be claimed by one that has initiated violence, as Israel had done in its crackdown on Hamas in the West Bank. That assault was launched on the pretext that Hamas had ordered the June 12 kidnapping and murder of three Israeli teens, for which Israel has offered no evidence.

Hamas has never been shy to avow its actions, and its leaders seemed as duped as the general public into believing that the Israeli youths were still alive. In fact, Israel's investigators had solid evidence from the outset that the teens had been killed shortly after abduction.

The Israeli government suppressed that information for two weeks -- the better, it would seem, to defend the 400 arrests, 1,600 home searches and killings of 10 Palestinians resisting the wave of repression. Israel's true objective in targeting Hamas may have been disrupting Palestinian national reconciliation, a goal it had sought, but failed to achieve, diplomatically.

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Even when self-defense is rightful, it must be proportional in scale to the violation that provoked it. Just as a citizen, jostled by another walking down the street, cannot gun down the instigator of the contact, neither can Israel unleash the full brunt of its military weaponry in response to rocket attacks that, while genuinely frightening many Israelis, rarely inflict tangible damage.

Proportionality can be an elusive concept, but the comparative Palestinian and Israeli casualty figures point to Israel's disproportional response.

As it has in past onslaughts against the Gaza Strip, Israel appears to be violating the principle of distinction, which requires armies to target only enemy military personnel and objects, while sparing civilians. Individual civilians can be treated as enemy soldiers, but only when directly engaged in combat.

Israel, however, treats all senior Hamas activists as combatants, regardless of function, and attacks them in residences. Israeli military spokesperson Lt. Col. Peter Lerner admitted the attempt to assassinate Gaza police chief Taysir al-Batsh, through the July 13 bombing of his cousin's home. Eighteen members of the al-Batsh family, spanning three generations, were killed in the slaughter. The youngest was a two-year old girl.

Police officers are, under international law, civilians. Hence, this Israeli attack on a private home was almost certainly a war crime.

Intelligence is never perfect, and bombs are rarely as "smart" as advertised. Nonetheless, mistakes by militaries are not, necessarily, criminal. Thus further investigation is needed into Israel's July 12 razing of a facility for the disabled in Beit Lahiya, killing 31-year-old Ola Washahi and 47-year-old Suha Abu Saada, both of whom were severely impaired by physical and mental handicaps; the July 9 killings of nine World Cup fans at the Fun Time Beach Cafe, and the bombing of the Wafa hospital on July 17.

As the international community appears either indifferent to Palestinian suffering or impotent to halt it, Palestinians must protect themselves by immediately invoking the jurisdiction of the International Criminal Court.

The court could investigate not just Israel's uses of force, but its settlements in the West Bank, which are likely war crimes under the Rome Statute of the ICC. After all, it is the forced displacement of Palestinians, the seizure of their land for exclusively Jewish settlements and the Palestinian struggle for freedom that underlie the periodic outbreaks of violence in the region.

When the United Nations General Assembly conferred observer state status on Palestine in November 2012, the current ICC prosecutor publicly declared her openness to Palestinian accession. Only the fear of Palestinian leaders, facing Israeli and U.S. intimidation, has barred invocation of ICC jurisdiction since then.

Palestinians must no longer permit their officials to continue dodging this obviously necessary legal step.

George Bisharat is a professor at UC Hastings College of the Law and writes frequently about the Middle East. He wrote this for this newspaper.